Abdalla v. Yehia

246 A.D.2d 373, 667 N.Y.S.2d 736, 1998 N.Y. App. Div. LEXIS 265

Opinion

Order, Supreme Court, Bronx County (Anne Targum, J.), entered on or about December 24, 1996, which granted third-party plaintiffs motion for a declaration that third-party defendant indemnify and provide liability insurance coverage to defendant Ogbenna, unanimously reversed, on the law, without costs, the motion denied, and the third-party complaint dismissed for third-party plaintiffs lack of standing to commence such an impleader. The Clerk is directed to enter judgment in favor of third-party defendant-appellant dismissing the third-party complaint.

The injured plaintiffs sued the driver/owner of the vehicle in which they were riding, and the driver/owner of the vehicle with which they collided. Plaintiffs’ driver/owner (defendant and third-party plaintiff herein) then impleaded his co-defendant’s insurer, and moved for declaratory judgment on the question of indemnification. The defense in the third-party action was that the co-defendant’s insurance policy had been cancelled nine months prior to the accident. The issue considered by the motion court was whether the cancellation of the co-defendant’s insurance policy had been accomplished in accordance with law and proper procedure.

What the court overlooked was the issue of standing to bring the third-party action in the first place. The defendant and third-party plaintiff was not the insured of the third-party defendant, and thus had no legally cognizable interest in the relationship between the co-defendant and his insurer (see, Clarendon Place Corp. v Landmark Ins. Co., 182 AD2d 6, appeal dismissed and lv denied 80 NY2d 918). A stranger to an insurance agreement acquires no right to enforce the insurer’s obligation until a judgment against the insured has been rendered and remains unsatisfied (Hershberger v Schwartz, 198 AD2d 859, 860). The third-party action should have been dismissed. Concur—Sullivan, J. P., Rosenberger, Wallach, Nardelli and Colabella, JJ.